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2005 DIGILAW 166 (AP)

G. Krishna, G. Kistaiah v. M. Ramakrishna Reddy

2005-02-22

ELIPE DHARMA RAO

body2005
ELIPE DHARMA RAO, J. ( 1 ) AGGRIEVED by the order dated 27-2-2003 in IA No. 1585 of 2002 in op No. 81 of 2000 on the file of the learned principal Senior Civil Judge, Ranga Reddy disrtict, in dismissing the application filed under Sections 10 and 151 of CPC seeking stay of the OP, this civil revision petition is filed. ( 2 ) THE brief facts that are necessary for disposal of the revision petition are that the revision petitioner contested the election as Member/councillor to Uppal Kalan municipality, which was held on 9-3-2000 and was declared elected as Member/ councillor on 29-3-2000. Thereafter, the unsuccessful candidate-first respondent herein gave a complaint to the Municipal commissioner with regard to the disqualification of the petitioner on the ground that he is having more than two children. Thereafter, the Municipal Commissioner issued a show-cause notice to the revision petitioner on 6-4-2000 regarding the allegation made against him i. e. , he is having more than two children and the revision petitioner submitted his explanation on 2-6-2000. After considering the explanation filed by the petitioner, the Municipal Commissioner had not satisfied and therefore, referred the matter for the opinion of the District Judge, ranga Reddy, in whose jurisdiction the municipality is constituted, and the same was registered as OP No. 863 of 2000. After conducting trial of the OP, the same was disposed of by an order dated 23-7-2002 declaring that the petitioner is disqualified under Section 13 (B) of the Act for having more than two children. Aggrieved by the same, WP No. 14301 of 2002 was filed by the petitioner before this Court and stay was granted on 6-8-2002. Before making a representation to the Commissioner, Uppal kalan Municipality, under Section 17 of the act, petitioner herein individually filed OP no. 81 of 2000 for the same relief on the file of the Court of Principal Senior Civil judge instead of filing before the District court as contemplated under Section 17 of the Andhra Pradesh Municipalities Act, 1965 (for the short the Act ) and the learned principal Senior Civil Judge has entertained the OP. During the pendency of the OP, respondents have filed transfer petition op No. 104 of 2001 seeking transfer of op No. 81 of 2000 to the District Court, rangareddy, and connected matter in OP no. During the pendency of the OP, respondents have filed transfer petition op No. 104 of 2001 seeking transfer of op No. 81 of 2000 to the District Court, rangareddy, and connected matter in OP no. 863 of 2000 is pending under consideration in the District Court, but the transfer petition was dismissed. Accordingly, the learned District Judge, Rangareddy, enquired into the matter and disposed of op No. 863 of 2000 holding that the petitioner herein has become disqualified for having more than two children. ( 3 ) THEREAFTER, the petitioner filed IA no. 1585 of 2002 in OP No. 81 of 2000, under Sections 10 and 151 of CPC, to stay the proceedings on the ground that similar matter was decided by the District Judge, rangareddy District, and against the same, a writ petition was filed before this Court and till the disposal of the writ petition, the proceedings in the OP is to be stayed. After considering the material available on record, the learned Principal Senior Civil judge dismissed the application observing that though the issue involved is one and the same in both the Ops. , but the Courts in which the OPs are filed are constituted on different footing by a statute, for different purposes. As such, it cannot be said that the proceedings in the present OP are to be stayed as prayed by the petitioner. He further observed that the proceeding is not in any suit and the grounds pleaded in the present OP are not only in respect of the disqualification but on some other grounds also. Aggrieved by the same, the present revision petition is filed. ( 4 ) THE learned Counsel for the petitioner has contended that the Court below has failed to exercise jurisdiction vested in it and acted in material irregularity in rejecting the application. He further contended that the Court below failed to see that the issue involved in OP No. 81 of 2000 and also in OP No. 863 of 2000 are one and the same and, more so at the instance of respondent, as such the application filed under Section 10 of CPC should not have been dismissed, having observed that the issued involved is one and the same. It is also contended that when the High Court was seized of the matter, the learned Judge should have waited for a verdict by the High Court. It is also contended that when the High Court was seized of the matter, the learned Judge should have waited for a verdict by the High Court. ( 5 ) EVIDENTLY the OPs were filed to declare the election of the petitioner herein as illegal on the ground that the returned candidate has disqualified himself, as a councillor, to Ward No. l 1, the Uppal Kalan municipality, Rangareddy District, for having more than two children, under Section 13 (B) of the Act, which makes it clear that if a person is having more than two children, shall be disqualified for the election or for continuing as a member. ( 6 ) A procedure is prescribed to declare a member as disqualified or has acquired disqualification to hold the office of member of Municipal Council, by virtue of sections 13-A, 13-B, 14, 16 and 19. In this case, the respondent made a representation to the Commissioner, Municipality that the petitioner has become disqualified under section 13-B of the Act, as he has more than two children, as on the date of filing his nominations, therefore, he cannot contest the election and the Commissioner, in turn, intimated the petitioner about the allegations made against him by the respondents. When the petitioner disputed the allegation, after lapse of two months, as per the resolution of the Council, applied for a decision to the learned District judge, Rangareddy, who registered it as op No. 863 of 2000 and after thorough enquiry, after following the procedure contemplated under Section 17 of the Act, and affording opportunity to the petitioner, disposed of the OP holding that the petitioner has become disqualified under Section 13-B of the Act. Against that order, the petitioner filed writ petition before this Court and obtained stay. Even otherwise, also, under sub-section (3) of Section 17, pending such decision, a member shall be entitled to act as if he was not disqualified. It is pertinent to note that the respondent, before making a representation to the Commissioner, in writing, the respondent has resorted to file OP No. 81 of 2000, but no stay was granted. Now the present LA was filed to stay the proceedings in the above OP no. 81 of 2000 till the disposal of the writ petition, which is pending before the High. Now the present LA was filed to stay the proceedings in the above OP no. 81 of 2000 till the disposal of the writ petition, which is pending before the High. Court on the ground that if the proceedings in OP No. 81 of 2000, are stayed, no prejudice would be caused to the respondent and to avoid conflicting judgments on the same issue, when the above IA was dismissed by the learned Principal Senior civil Judge, Rangareddy, this civil revision petition is filed. ( 7 ) THE relevant provision of law, having a bearing on the issue is Section 17 of the Act. For a better understanding of the lis, it is apt to reproduce the same, which reads:"17. District Judge to decide questions of disqualifications of members : (1) Where an allegation is made by any voter or authority to the [commissioner] in writing that any person who is elected as a member has not qualified or has become disqualified under [section 13, Section 13-A, Section 13-B, Section 14, Section 16 or Section 19 and the [commissioner] has given intimation of such allegation to the member and such member disputes the correctness of the allegation so made or where any member himself entertains any doubt whether or not he has become disqualified under any of those selections: (a) such member or any other member, may, within a period of two months from the date on which such intimation is given or doubt is entertained, as the case may be; and (b) the Commissioner shall, either on the directions of the Council or with the approval of the Government if no such direction is given within a period of two months from the date of placing of the matter by the Commissioner before the Council, apply for a decision to the District Judge of the district in which the Municipality is situated (IA) [x x x] (2) The said Judge, after making such inquiry, shall determine whether or not such person disqualified and his decision shall be final. (3) Pending such decision, the member shall be entitled to act, as if he was not disqualified. " ( 8 ) EVIDENTLY, Section 17 confers jurisdiction on the District Courts to decide, whether or not, any member has accrued disqualification. (3) Pending such decision, the member shall be entitled to act, as if he was not disqualified. " ( 8 ) EVIDENTLY, Section 17 confers jurisdiction on the District Courts to decide, whether or not, any member has accrued disqualification. Therefore, when once the matter was referred to the District Judge, with inviting his decision as to whether the Councillor has accrued disqualification under Section 13-B of the Act, by the commissioner, after completing formalities viz. , putting the petitioner on notice in terms of Section 17 (l) (a) and when the same was brought to the notice of Senior civil Judge, that the District Judge is seized of the matter under Section 17 of the Act the learned Senior Civil Judge ought not to have entertained the OP No. 81 of 2000, which is filed for the self same relief and ought to have rejected the same, as not maintainable, more particularly when section 17 of the Act confers jurisdiction on district Court. Therefore, the reasoning assigned by the learned Senior Civil Judge in IA No. 1585 of 2002 in OP No. 81 of 2000 that the District Court and the Senior Civil judge s Courts are constituted under two different statutes and for different purpose does not stand to judicial scrutiny. Any amount of such flimsy reasoning of the learned Principal Senior Civil Judge, rangareddy, does not confer jurisdiction of district Court on the Court of Senior Civil judge. Thus the learned Senior Civil Judge passed the impugned order without giving a glance at the provision of law. Therefore, the impugned order is liable to be set aside and is accordingly set aside and the civil revision petition is allowed. No order as to costs.